DAN MORALES

,Al-r,,RSEY CESERAL 

## Gffice of tty glttornep Qkneral &date of ?F;exae March 13,1992

Honorable Chet Brooks Chairman Committee on Health and Human Services Texas State Senate P. 0. Box 12068 Austin, Texas 78711 Opinion No. DM-97 Re: Whether Texas’procedure whereby a man voluntarily can establish paternity of a child born out of wedlock “legitimates” the child (RQ-178)

Dear Senator Brooks: Prior to its amendment in 1986, section 309(a) of the United States Immigration and Nationality Act of 1952 provided that a child born outside of wedlock outside ofthe United States to a father whoisa citizen ofthe United States and a noncitizen mother was deemed a citizen of the United States from birth if, before the child reached age twenty-one, the child’spaternity was established “by legitimation,” according to the law of the child’s or the father’s residence or domicile.’ We understand you to ask whether a child whose paternity is established

tScction 209(a) of the Immigration and Nationality Act appears at section 1409(a) oftitle 8 of the United States Code. In 1986, Congress amended section 309(a) so that a child bon outside of wedlock is deemed a citizeo of the United States from the time of bii if,before tbe child reaches the age of eighteel&

a blood relationship benveen the child and the [child’s] father is established by clear and convincing tidence, provided the father bad the nationality of the United States at the time of the child’s bbtb, the father mdess deaascd has agreed in writing to provide tkaocial support for the child until such child reaches the age of eighteen years and if, while such child is under the age of eighteen years, (1) such child is le&imated under tbe law of the child’s residence or domicile, or (2) the father acknowledges paternity of the child in writing under oath, or (3) paternity of the child is c&abkhed by adjudication of a competent court. Immigration & Nationality Act Amends. of 1986, Pub. L 99653, 5 13(b), 100 Stat. 3657 (1986). We arc informed that a child born before the effective date of the 19%amendments must become a citizen pursuant to the pre-1986 version of section 309(a) because that section deems tbe child a citizen from

P. 490Honorable Chet Brooks - Page 2 (DM-97)

under Texas law pursuant to sections 13.21through 13.24 of the Family Code, as amended in 1989, is deemed a United States citizen pursuant to the pre-1986 version of section 309(a) ofthe Immigration and Nationality Act. While this office cannot determine the citizenship ofan individual under federal law,we can explain the purpose as well as the effect, if any, of the 1989amendments to sections 13.21 through 13.24 of the Family Code on the status and rights of a child under Texas law. Until 1989, Texas law provided a procedure for “voluntary legitimation” in sections 13.21through 13.24ofthe Family Code. Using Texas’ statutory procedure for “voluntary legitimation,” a man who was a citizen of the United States and a resident of Texas, could, by voluntarily executing a proper statement of paternity and having a court designate him to be the father, legitimate his child born out of wedlock outside of the United States to an alien woman. After legitimation under the pre-1989 version of sections 13.21through 13.24of the Family Code, the child was entitled to the same rights under Texas law as a child born in wedlock. See Fam. Code 9s 11.01(3) (defining “[plarent” to include man who has been adjudicated to be child’s biological father), 11.01(4)(defining “[plarent-child relationship”), 12.04 (listing rights, privileges, duties, and powers existing between parent and child). In 1989,however, Texas amended sections 13.21through 13.24of the Family Code to provide a procedure for “voluntary paternity,“’ instead of

“voluntary legitimation.” Bychanging the name ofthe procedure, the Texas statute

(footnote continued) birth ifthe terms of the statute are satisfied. Thus, the issue you rake will be pertinent until the year 5007, when children born in 1986will turn twenty-one yearsofage.

‘Section 13.21 establishes a procedure for voluntary adjudication of paternity in cases in which a man claiming to IX the biological farher of a child who has no presumed farher has executed a statement of paternity. A voluntary paternity suit is “voluntary” only in the sense that the alleged father voluntarily wires and signs a statement of paternity. Smith, Title 2: Comrnenruty, 8 TEX. TECH.L. REV. 19, 68 (1976) (Texas Family Code Symposium Supplement). The statement of paternity, which must be attached to the petition for adjudication of paternity, must comply with the requirements articulated in .section 13.22 of the Family Code. But see Fam. Code 0 13.24 (validating a statement acknowledging paternity or an obligation lo support a child if the alleged biological father signed the statement prior to January 1, 1974, although the statement does not comply with section 13.22 of the Family Code, and is not filed with the Texas Department of Human Services or with the court). A statement of paternity executed in compliance with section 13.22 constitutcspriwo facie evidence that the child is the child of the man execuGng the statement and that he has an obligation to support the child. Id. 5 13.23(a); see also Smith, suprcr at73. SeegenrrcrllyDoyle, Commem, Volrtrtra~ Legitinwtion Rig/mof Unwed Far/ws in Tews. 20 Hovs. L.REV.1157 (1983).

p. 491Honorable Chet Brooks - Page 3 (DM-97)

differs from the pre-1986 version of section 309(a) of the Immigration and Nationality Act, whichrequires “legitimation.” The Texas Legislature amended sections 13.21through 13.24of the Family Code, as well as other sections of the Family Code, Human Resources Code, Probate Code, and civil statutes in Senate Bill 401. Acts 1989,71st leg., ch. 375, 3 17, at 1481,to remove all references to legitimacy and illegitimacy. Tapes of a public hearing conducted regarding Senate Bill 401 reveal that, by removing references to legitimacy and illegitimacy throughout Texas law, the legislature merely intended to eradicate what it considered an “odious term” that wrongly stigmatized the child ofan “illicitunion.” Hearings on S.B.401 Before the Senate Jurisprudence Comm., 71stLeg.(Mar. 14, 1989)(testimony ofHarry Tindell, drafter of S.B.401); see aLr0 id. (testimony of Steven McNally, expert witness, stating that word change was nonsubstantive). The present voluntary paternity procedure is one method by which a parentchild relationship may be established. Fam. Code 9 12.01(a). According to the Family Code, once parenthood has been established by the volu.ntary paternity procedure or by any other method listed in section 12.01(a), the parent-child relationship “extends equally to every child and parent regardless of the marital status ofthe parents.” Id. 9 12.01(b). Thus, once a court adjudicates the man to be a parent of the child, see id. 5 13.21, the man and child have a legal parent-child relationship “incident towhichthe rights, privileges, duties, and powers as provided by Section 12.04ofthiscodeare conferred or imposed.“) Id. § 11.01(4).

3Section 12.04ofthe FamilyCode states: Except as otherwise provided by judicial order or by an affidavit of relinquishment of parental rights executed under Section 15.03 of thii code, the parent of a childhas

the following rights, privileges, duties, and powers: (1) the rightto have physical possession, to direct the moral and religious training,and to establish the legal domicile of the child: (2) the duty of care, control, protection, and reasonable diicipliie ofthe child; (3) the duty to support the child, including providing the child with clothing, food, shelter, medical care, and education; (4) the duty, except when a guardian of the child’s estate has been appointed, to manage the estate ofthe child, including a power

P. 492Honorable Chet Brooks - Page 4 (DM-97)

Although Senate Bill401changed the name ofthe procedure from “voluntary legitimation” to “voluntarypaternity,” the billdid not change the procedure involved, with the exception of amending section 13.21to permit governmental entities other than the Texas Department ofHuman Services to file a petition for adjudication of paternity. Moreov& both the previous “voluntary legitimation” procedure and the current “voluntary paternity” procedure produce the same result: the establishment of aparent-child relationship. The legislature did not alter the substance of rights, privileges, duties, and powers incident to the parent-child relationship listed in sectlon 12.04in 1989when it changed the name of the procedure from “voluntary legitimation” to “voluntary paternity.” Clearly, then, a child born out of wedlock whose paternity has been established pursuant to the voluntary paternity procedure set forth in sections 13.21through 13.24ofthe Family Code is entitled to the same parent-child relationship, and therefore the same rights under Texas law, as a child born in wedlock.” In our opinion, the 1989amendments to sections 13.21through 13.24made no substantive change, and the change in terminology thus should not
(footnote continued)

as an agent of the child to act in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government; (5) the right to the services andearnings of the child; (6) the power to consent to marriage, to enlistment in the armed forces of the United States, and to medical, psychiatric, and surgicaltreatment; (7) the power to represent the child in legal action and to make other decisions ofsubstantial legal significance concerning the child; (8) the power to receive and give receipt for payments for the support of the child and to hold or disburse any funds for the benefit of the child; (9) the right to inherit from andthrough the child; and (10) any other right, privilege, duty, or power existing between a parent and child byvirtue of law. 4For interesting cases regarding chapter 13ofthe Family Code, see Bore v. Lmw~, 802 S.W.Zd 73, 75 a.1 (Tex. App.--Austin 1990), wrir grmfed, 34 Tex. Sup.

Ct.J. 687 (Nov. 19, 1991); Tercrs Dep’f of Hunum ResorrrresI’. Hmnrmrder,

595 S.W.Zd 189(Tex. Civ.App.--Corpus Christi 1980, writ ret’d n.r.e.) (overruled on other grounds inIn Inferesto/J&M., 631S.W.Zd730 (Tex. 1982)).

p* 493Honorable Chet Brooks - Page 5 (DM-97)

affect the way inwhichthe federal government applies the provisions in determining citizenship of children born out of wedlock under the Immigration and Nationality Act. SUMMARY

The procedure for establishing “voluntary paternity” under sections 13.21 through 13.24of the Family Code is essentially the same as the procedure for “voluntary legitimation” under the pre-1989 version of sections 13.21 through 13.24, and both procedures produce the same result. A child born out of wedlock whose paternity has been established pursuant to sections 13.21through 13.24 of the Family Code is entitled to the same parent-child relationship and the same rights under Texas law as a child born inwedlock. Very truly yours,

DAN MORALES Attorney General ofTexas WILL PRYOR First Assistant Attorney General MARY KELLER Deputy Assistant Attorney General JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney General RENEA HICKS Special Assistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by Kym Oltrogge Assistant Attorney General

P- 494